A recorder has made a third-party costs order for just over £50,000 against the claimant’s medical expert in a clinical negligence case.
In Robinson v (1) Liverpool University Hospital NHS Foundation Trust and (2) Dr Chris Mercier, Dr Mercier, a general dental practitioner, accepted instructions to act for the claimant in a case concerning treatment provided by a maxillofacial surgeon, specifically an extraction performed under general anaesthetic.
At trial, Dr Mercier conceded that he did not have experience of performing such a procedure for more than 20 years, had no experience of obtaining patient consent for it and that he was not as well placed as the defendant’s expert witness – a consultant maxillofacial surgeon – to comment on the case. The claimant discontinued her claim during the trial, following Dr Mercier’s evidence.
In her judgment, Recorder Hudson held that “but for Dr Mercier’s report, this claim would not have been brought”.
“All costs claimed within the defendant’s cost budget are therefore caused by Dr Mercier’s flagrant disregard for his duty to the court. A public body has been put to considerable expense in financing costly litigation that should not have been brought. Although it is not part of my considerations, I observe that a hard-working oral and maxillofacial surgeon was maligned in public and undoubtedly caused significant distress by the actions of Dr Mercier.”
Hill Dickinson, which acted for the defendant, reported that the judge rejected submissions that the defendant trust could in any way be criticised for having failed to take action itself to bring the point to the attention of Dr Mercier, his legal advisers, or the court before trial.
The firm said it was the second significant third-party costs order made against an expert in clinical negligence litigation, following a wasted costs order of £88,000 made by a circuit judge against an expert in early 2020.
Hill Dickinson said: “It ought to serve as a further warning to experts that they must report strictly within their own area of expertise, both in terms of specialty and also having regard to their contemporaneous practice.
“It also highlights that the duty of an expert cannot be delegated either to their instructing solicitor, or to the representatives of the other party in the litigation.”
Giles Colin of 1COR was instructed for the trust.
Separately, a judge has ordered indemnity costs against a defendant that sought to add a single joint expert as a party for the purposes of costs.
In rejecting the application to add Dr Tim Leigh earlier this year, District Judge Obodai said the test was a high one and more demanding than that for making a wasted costs order.
Last month, she ruled on the application for indemnity costs having already ordered an interim payment of £40,000 in the ultimately vain hope of encouraging a settlement.
She said: “It is the way the application was pursued, the lack of evidence that was provided by the defendant in support of that application and the findings that I made which lead me to the conclusion that I ought to exercise my discretion… to order that the defendant pay Dr Leigh’s costs on an indemnity basis.
“The reason for that decision is that the defendant’s conduct in the way they dealt with this application does take it out of the norm.”
DJ Obodai recounted that she found TUI acted contrary to the overriding objective and acted unfairly in failing to warn Dr Leigh. There was no evidence put forward except the criticisms of Dr Leigh she had made in her judgment; this was “insufficient” to found the application and the defendant should have realised that.
Paul Hughes (instructed by Kennedys) for the defendant/respondent. Colm Nugent (instructed by Reynolds Porter Chamberlain) for the proposed additional party/applicant.